EXHIBIT 10.08
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into this
27th day of July 2000, by and between Aladdin Gaming, LLC ("Company"), Aladdin
Gaming Holdings, LLC ("Gaming Holdings") and Xxxxxxxx Xxxxxx ("Executive").
WHEREAS, the Company considers it important and in its best interest
and the best interest of its owners to xxxxxx the employment of key management
personnel and desires to retain the services of Executive on the terms and
subject to the conditions of this Agreement;
WHEREAS, the Executive desires to continue employment with the
Company and to render services to the Company on the terms and subject to the
conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the following
mutual covenants and agreements, the parties agree as follows:
1. EMPLOYMENT.
a. The Company hereby employs Executive as Senior Vice President,
Corporate Affairs and Legal, and Secretary of Gaming Holdings and
the Company. Executive shall serve as a member on the Company's
Executive Committee. Executive hereby accepts such employment and
positions for the compensation and subject to the terms and
conditions in this Agreement.
2. TERM. The term of the Executive's employment under this Agreement ("Term")
shall commence on February 1, 2000 ("Commencement Date") and shall continue for
three (3) years unless earlier terminated as provided in this Agreement. (The
date of any termination of this Agreement as provided herein is the "Termination
Date.")
3. DUTIES AND RESPONSIBILITIES. During the Term, Executive will serve as
Senior Vice President, Corporate Affairs and Legal, and Secretary of Gaming
Holdings and the Company. Executive shall serve as a member on the Company's
Executive Committee and report to the CEO. Executive will have such authority,
responsibilities and duties as are customarily associated with this position. At
all times Executive shall faithfully and to the best of her abilities perform
her duties and responsibilities hereunder to the reasonable satisfaction of the
Board of Directors. In addition, Executive shall devote 60% of her full time,
efforts and attention to the business and affairs of the Company, use her best
efforts to further the interest of the Company and at all times conduct herself
in a manner which reflects credit upon the Company.
4. COMPENSATION.
a. SALARY. For her services hereunder, the Company shall pay Executive
a base salary of One Hundred Sixty-two Thousand Two Hundred Forty
Dollars ($162,240) prior to the opening for operation of the Aladdin
Resort & Casino. Upon the opening for operation
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of the Aladdin Resort & Casino, the Company will pay the
Executive a base salary equal to the 75th percentile of the
industry rate, but not less than $215,000. ("Base Salary") for
each consecutive 12-month period during the Term. (Each such
consecutive 12-month period is an "Employment Year"). Executive's
Base Salary will be prorated for any partial Employment Year. On
February 1, 2001 and each year thereafter, the Board of Directors
will consider an increase in the Base Salary based upon criteria
determined by the Board of Directors and applicable to other
members of the executive management group. Any such increases,
however, shall be in the sole discretion of the Board of
Directors. There shall be no reduction in Base Salary during the
Term. The Base Salary shall be payable in equal periodic
installments subject to customary deductions for social security,
other taxes and amounts customarily withheld from salaries of
employees of the Company, all in accordance with the Company's
usual and customary payroll practices.
b. CONSULTING FEE.
(i) During the Term of this Agreement, company shall pay to
Xxxxxxxx Xxxxxx & Associates an annual retainer of $40,000.
The first payment will be made upon execution of this
Agreement and thereafter, on February 1 of each year.
(ii) Upon Termination of this Agreement, except Termination by the
Company for Cause, for three years, Company shall employ
executive as a member or Chairman of its Compliance committee
at an annual retainer of $50,000. During this period any
unvested long-term compensation awards will continue to vest;
and, Executive has the option to postpone exercise of the claw
back provisions on any Equity Interest.
c. ANNUAL BONUS. From and after the date the Company opens and begins
operating the Aladdin Resort & Casino ("Operational Date").
Executive is eligible to receive from the Company an annual cash
bonus. The Board of Directors will determine such criteria and
standards in a bonus plan, which will be competitive with industry
standards and applicable to other members of the executive
management group. Executive's bonus will be prorated accordingly if
the Aladdin Resort & Casino is only open and operating during a
portion of the bonus year. Executive is eligible to participate in
the opening bonus for the Aladdin Resort & Casino established by the
Board of Directors provided Executive meets all the criteria for
such bonus.
d. BENEFITS. During the Term, Executive shall be entitled to receive
from the Company such health, pension, retirement and other employee
benefits as the Company provides to other members of the executive
management group. During the Term, the Company, at its expense, will
provide Executive with term life insurance in the amount of
Executive's annual Base Salary. During the Term, the Company, at its
expense, will provide Executive with long-term disability coverage
under a group long-term disability plan the Company provides other
members of the executive management group.
e. VACATION. Executive shall be entitled to two (2) weeks paid vacation
for each Employment Year, prorated for any partial Employment Year.
The Board of Directors in
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its discretion may increase Executive's vacation entitlement. The
timing and duration of specific vacations will take into account
the business needs of the Company and will be mutually agreed to
by the parties. In the event any such vacation is not used by
Executive in any Employment Year, the Executive has a right to
accumulate and carry forward such number of unused vacation days
from year to year as may be consistent with the Company's policy
for other members of the executive management group. Upon
termination of employment, all unused vacation time shall be paid
to Executive.
f. REIMBURSEMENT OF EXPENSES. The Company shall pay all reasonable
expenses incurred by Executive in the performance of her duties and
responsibilities for the Company. Executive shall submit to the
Company statements and documentation reflecting such expenses
incurred, with such detail, backup and confirmation as the Company
may reasonably require. Subject to any audit Company deems
necessary, the Company shall promptly reimburse Executive the full
amount of any such expenses incurred by Executive.
g. EQUITY INTEREST. Executive will receive a restricted membership
interest of 0.45%, or the economic equivalent thereof, in Gaming
Holdings which Gaming Holdings is currently evaluating which may
include, but not be limited to, a "profits only interest," "option,"
or "phantom stock" (collectively, "Equity"). Such Equity will be
fully vested no later than February 1, 2002. Such Equity arrangement
shall include the right to receive 0.45% of the distributions that
are made to the holders of Gaming Holdings Common Membership
Interests. When Gaming Holdings finalizes the Equity arrangement,
the parties will amend this Agreement so that the Executive shall
participate in such program substantially in the form previously
presented to the Executive. If Gaming Holdings does not create an
Equity arrangement by the Operational Date, the parties will
negotiate in good faith to establish a compensation arrangement in
lieu of an Equity arrangement, which would have the same economic
benefit to the Executive. The profits only interest shall not have a
company valuation basis greater than 200 million dollars.
h. AUTO ALLOWANCE. During the Term, the Company shall pay Executive an
auto allowance of Five Hundred Dollars ($500) per month.
5. TERMINATION. This Agreement shall terminate in accordance with the
following provisions:
a. EXPIRATION OF THE TERM. Unless earlier terminated in accordance with
the provisions hereof, this Agreement shall terminate on expiration
of the term as provided in Section 2.
b. DEATH. If the Executive dies during the Term, this Agreement shall
terminate, with the Termination Date being the date of the
Executive's Death.
c. DISABILITY. If the Executive has been absent from service to the
Company as required in this Agreement for a period of ninety (90)
days or more during any one hundred eighty (180) day period during
the Term as a result of any physical or mental disability, the
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Company has the right to terminate this Agreement, the Termination
Date being ten (10) days after notice thereof is given to Executive.
d. TERMINATION BY COMPANY FOR CAUSE. The Company has the right to
terminate this Agreement for Cause as defined herein, the
Termination Date being the date upon which the Company delivers
notice thereof to the Executive. For purposes of this Agreement,
Cause shall mean Executive's: (1) conviction of any felony; (2)
embezzlement or misappropriation of money or property of the
Company; (3) denial, rejection, suspension or revocation of any
gaming license or permit; (4) Executive's material breach of section
6 hereof which material breach has an adverse impact on the Company;
and (5) Executive quits her employment with the Company without Good
Reason. Good Reason is defined as: (i) the assignment to Executive
of duties materially inconsistent with her position and title
without her consent; or (ii) a material reduction in Executive's
duties, authorities and responsibilities without her consent; or
(iii) a reduction by the Company in Executive's Base Salary, in
effect immediately prior to such reduction, without her consent,
provided Executive gives the Company written notice specifying such
assignment or reduction and the Company has not cured or abated such
assignment or reduction within twenty (20) days thereafter; or (iv)
the Operational Date has not occurred within 365 calendar days from
the Effective Date; or (v) Executive quits employment after February
1, 2002.
e. TERMINATION BY COMPANY WITHOUT CAUSE OR TERMINATION BY EXECUTIVE
WITH GOOD REASON OR UPON A CHANGE OF CONTROL. Subject to the
provisions of Section 8(e), (i) the Company has the right to
terminate this Agreement without Cause, (ii) the Executive has the
right to terminate this Agreement for Good Reason and (iii) the
Executive has the right to terminate this Agreement upon a Change of
Control by giving the other party written notice thereof. In each
case above, the Termination Date being the date upon which notice of
termination is delivered by the terminating party to the other
party. For purposes of this Agreement, a Change of Control shall be
deemed to occur only if collectively the Xxxxxx Family Trust and
London Clubs International, plc, through their affiliates, own less
than fifty percent (50%) of the membership interests of either
Gaming Holdings or the Company.
6. EXECUTIVE'S COVENANTS. The Executive acknowledges that the Company and
Gaming Holdings have substantial, legitimate and continuing interest in
the protection of their business relationships with others including,
without limitation, current and prospective employees, consultants,
advisors, customers, vendors, suppliers, partners or joint venturers and
financing sources, and in the protection of their Confidential Information
and have invested substantial sums, time and effort and will continue to
invest substantial sums, time and effort to develop, maintain and protect
such relationships and Confidential Information. Accordingly, Executive
covenants and agrees as follows:
a. CONFIDENTIALLY. During the Term and thereafter, Executive shall keep
secret and retain in strictest confidence and shall not, without the
prior written consent of the Company or Gaming Holdings, furnish,
make available or disclose to any third party or use for the benefit
of himself or any third party any Confidential Information.
Confidential Information is information related to or concerning
Gaming Holdings, the Company and
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their businesses which is confidential, proprietary or not
generally known to and cannot be readily ascertained through
proper means by persons or entities (including Gaming Holdings'
and the Company's present or future competitors), who can obtain
any type of value from its disclosure or use. Confidential
Information includes all secret, confidential or proprietary
information, knowledge or data specifically relating to Gaming
Holdings and the Company, such as, without limitation, finances
and financing methods, sources, proposals or plans; operational
methods; marketing or development proposals, plans or strategies;
pricing strategies; business or property acquisition or
development proposals or plans; new personnel acquisition
proposals or plans; customer lists and any descriptions or data
concerning current or prospective customers. While employed by
the Company and in furtherance of the business and for the
benefit of Gaming Holdings and the Company, Executive may provide
Confidential Information as appropriate to attorneys,
accountants, financial institutions, and other persons or
entities engaged in business with the Company and to Executive's
personal attorney and/or accountant to the extent necessary to
advise Executive; provided, however, such individual(s) will be
similarly bound to maintain the confidentiality of the
information disclosed.
b. NON-COMPETITION.
1) The Company acknowledges and agrees that the Executive, as a
member of the State Bar of Nevada, is subject to the Nevada
Supreme Court Rules ("Supreme Court Rules"). The Supreme Court
Rules impose upon Executive various restrictions including,
among other things, confidentiality of information and
conflicts of interest arising from Executive's employment with
the Company. The Company and Executive agree that the Supreme
Court Rules provide adequate and sufficient protections to the
Company and its interests if Executives employment ceases with
the Company and Executive is employed by another company.
Company acknowledges that it is aware of Executives employment
with other companies in her capacity as a consultant on
compliance matters and as a member of Boards.
2) Notwithstanding anything to the contrary contained herein,
Executive shall not be subject to the non-competition
provisions of this Agreement, if this Agreement is terminated
other than pursuant to the provisions of Section 5(d).
c. EMPLOYEES OF THE COMPANY. For one (1) year following the Termination
Date, Executive shall not, directly or indirectly, solicit, or cause
others to solicit, for employment by any person or entity other than
the Company, any employee of the Company or encourage any such
employee to leave the employment of the Company.
d. PROPERTY OF THE COMPANY. Executive acknowledges and agrees that all
memoranda, notes, lists, records and other documents or papers,
including copies thereof, containing or reflecting Confidential
Information (whether or not such items are kept or stored in
computer memories, microfiche, hard copy or any other manner) made
or compiled by Executive or made available to Executive are and
remain the property of the Company ("Company Property") and shall be
delivered to the Company promptly upon any termination of this
Agreement. Under Section 5 hereof, Executive shall retain no copies
of Company Property following the Termination Date.
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e. REASONABLENESS AND SEVERABILITY OF COVENANTS. The Executive
acknowledges and agrees that the Executive's covenants herein are
necessary for the protection of the Company's legitimate interests,
are reasonable and valid in duration and geographical scope, and in
all other respects. If any court determines that any of the
Executive covenants or any part thereof, invalid or unenforceable,
the remainder of the restrictive covenants shall not thereby be
affected and shall be given full effect without regard to the
invalid portions.
f. BLUE-PENCILLING. If any court determines that any of the Executive's
covenants, or any part thereof, is unenforceable because of the
duration or geographical scope of such provision, such court shall
have the power to reduce the duration or scope of such provision, as
the case may be, and, in its reduced form, such provision shall then
be enforceable.
7. NON-DISPARAGEMENT. Each of the parties agrees that after the Termination
Date, neither shall, publicly or privately, disparage or make any
statements (written or oral) that could impugn the integrity, acumen
(business or otherwise), ethics or business practices of the other, except
in each case, to the extent (but solely to the extent) necessary: (i) in
any judicial or arbitral action to enforce the provisions of this
Agreement; or (ii) in connection with any judicial or administrative
proceeding to the extent required by applicable law.
8. EFFECT OF TERMINATION. The following provisions shall apply in the event
of the termination of this Agreement as provided in Section 5 above, and
neither party shall have any further liability or obligation to the
other, except as provided herein:
a. EXPIRATION OF TERM. Upon expiration of the term under Section 5(a)
hereof, this agreement shall terminate and be of no further force
and effect, except as provided in Sections 4(b)(ii), 6(a), 6(c),
6(d), 6(e), 6(f) and 7; provided that, the Executive shall be
entitled to such salary, bonus and benefits then accrued or vested
to the Termination Date, and any expense reimbursement amounts
accrued to the Termination Date;
b. DEATH. Upon termination of this Agreement as provided in Section
5(b) hereof, this Agreement shall terminate and be of no further
force and effect; provided, further, that the Company shall pay to
Executive's estate any salary, bonus and benefits then accrued or
vested to the Termination Date, and any expense reimbursement
amounts accrued to the Termination Date;
c. DISABILITY. Upon termination of this Agreement as provided in
Section 5(c) hereof, this Agreement shall terminate and be of no
further force and effect, except as provided in Sections 6(a), 6(c),
6(d), 6(e), 6(f) and 7; provided that Executive shall be entitled to
such salary, bonus and benefits then accrued or vested to the
Termination Date, and any expense reimbursement amounts accrued to
the Termination Date;
d. TERMINATION PURSUANT TO SECTION 5(D). Upon termination of this
Agreement as provided in Section 5(d) hereof, this Agreement shall
terminate and be of no further force
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and effect, except as provided in Sections 6 and 7; provided that
Executive shall be entitled to such salary, bonus and benefits
then accrued or vested to the Termination Date, and any expense
reimbursement amounts accrued to the Termination Date;
e. TERMINATION PURSUANT TO SECTION 5(e). Upon termination of this
Agreement as provided in Section 5(e) hereof, this Agreement shall
terminate and be of no further force and effect, except as provided
in Sections 4(b)(ii), 6(a), 6(c), 6(d), 6(e), 6(f) and 7; provided,
further, that Executive shall be entitled to such salary, bonus and
benefits including but not limited to health benefits and expense
reimbursements to which Executive would have been entitled for the
remainder of the Term or twelve (12) months, whichever is longer, as
if there had been no earlier termination.
9. GENERAL PROVISIONS.
a. ASSIGNMENT. Neither this Agreement nor any right or interest
hereunder shall be assignable by the Executive, or the Company or
Gaming Holdings without prior written consent of the other;
provided, that (1) in the event of the Executive's Death during the
Term, the Executive's estate and his heirs, executors,
administrators, legatees and distributees shall have the rights and
obligations set forth herein, as provided herein, and (2) nothing
contained in this Agreement shall limit or restrict the Company's
ability (A) to merge or consolidate or effect any similar
transaction with any other entity, irrespective or whether the
Company is the surviving entity (including a split up, spin off or
similar type transaction), provided, that one or more of such
surviving entities shall continue to be bound by the provisions
hereof binding upon the Company, (B) to assign this Agreement in
conjunction with a sale of all or substantially all of the Company's
assets, or (C) an assignment of this Agreement to an affiliate
controlled by or under common control with the Company. Gaming
Holdings has the same rights and obligations under this Section as
the Company.
b. BINDING AGREEMENT. Except as otherwise provided in this Agreement,
this Agreement shall be binding upon, and inure to the benefit of,
the Executive, Gaming Holdings and the Company and their respective
heirs, executors, administrators, legatees and distributees,
successors and permitted assigns. Any such successor of the Company
or Gaming Holdings shall be deemed substituted for the Company or
Gaming Holdings under the terms of this Agreement for all purposes.
As used herein, "successor" shall include any person, firm,
corporation or other business entity which at any time, whether by
purchase, merger or otherwise, directly or indirectly acquires all
or substantially all or the assets or business or the Company or
Gaming Holdings and supercedes any prior understandings or
agreements between the parties hereto.
c. AMENDMENT OF AGREEMENT. This Agreement may not be modified or
amended except by an instrument in writing signed by the parties
hereto.
d. SEVERABILITY. If, for any reason, any provision of this Agreement is
determined to be invalid or unenforceable, such invalidity or lack
of enforceability shall not affect any other provision of this
Agreement not so determined to be invalid or unenforceable, and
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each such other provision shall, to the full extent consistent with
applicable law, continue in full force and effect, irrespective of
such invalid or unenforceable provision. Gaming Holdings has the
same rights and obligations under this Section as the Company.
e. ENTIRE AGREEMENT. Except for those matters detailed in Section 4(f),
this Agreement represents the entire agreement and understanding
between the Company, Gaming Holdings and the Executive concerning
the matters herein and supercede any prior understandings or
agreements between the parties.
f. INDEMNIFICATION. Notwithstanding the termination of this Agreement,
the Company shall indemnify and hold Executive harmless to the full
extent permitted by Chapter 86 of the Nevada Revised Statutes
against costs, expenses, liabilities and losses, including
reasonable attorney's fees and disbursements of counsel, incurred or
suffered by him in connection with his service as an employee of the
company during the Term of this Agreement.
g. NOTICES. For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly given (1) when delivered, if
sent by telecopy or by hand, (2) one business day after sending, if
sent by reputable overnight courier service, such as Federal
Express, or (3) three business days after being mailed, if sent by
United States certified or registered mail, return receipt
requested, postage prepaid. Notices shall be sent by one of the
methods described above; provided, that any notice sent by telecopy
shall also be sent by any other method permitted above. Notices
shall be sent:
If to the Executive: Xxxxxxxx Xxxxxx
0000 Xxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
If to the Company Aladdin Gaming Holdings, LLC
and/or Gaming Aladdin Gaming, LLC
Holdings: 000 Xxxxx Xxxx
Xxx Xxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
With a copy to: Aladdin Gaming Holdings, LLC
Aladdin Gaming, LLC
000 Xxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: General Counsel
or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notice of
change of address shall be effective only upon receipt.
h. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but
all of which together shall constitute one and the
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same instrument. Gaming Holdings has the same rights and
obligations under this Section as the Company.
i. INDULGENCES, ETC. Neither the failure nor any delay on the part of
either party to exercise any right, remedy, power or privilege under
this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, remedy, power or privilege
preclude any other or further exercise of the same or of any other
right, remedy, power or privilege, nor shall any waiver of any
right, remedy, power or privilege with respect to any occurrence be
construed as a waiver of such right, remedy, power or privilege with
respect to any other occurrence.
j. BINDING ARBITRATION. Except for an action by the company for
injunctive or other equitable relief, any dispute or controversy
arising under or in connection to this Employment Agreement shall be
resolved through binding arbitration, conducted in Las Vegas,
Nevada, in accordance with the rules of the American Arbitration
Association. Judgment may be entered on the arbitration award in any
court of competent jurisdiction.
k. HEADINGS. The headings of sections and paragraphs herein are
included solely for convenience of reference and shall not control
the meaning or interpretation of any of the provisions of this
Agreement. Gaming Holdings has the same rights and obligations under
this Section as the Company.
l. NEUTRAL CONSTRUCTION. Each party to this Agreement has had the
opportunity to retain counsel, and to review and participate in the
drafting of this Agreement, and, accordingly, the normal rule of
construction to the effect that any ambiguities are to be resolved
against the drafting parties will not be employed or used in any
interpretation of enforcement of this Agreement.
m. GAMING LAW. Anything to the contrary herein notwithstanding, the
parties hereto agree and acknowledge that they are subject to and
that they shall comply in all respects with the gaming laws of the
state of Nevada including the Nevada Gaming Control Act and the
rules and regulations promulgated by the Nevada Gaming Commission
and the Gaming Control Board. To the extent anything in this
Agreement is inconsistent with any gaming laws or regulations, the
gaming laws and regulations shall control.
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n. GOVERNING LAW. This Agreement has been executed and delivered in the
state of Nevada, and its validity, interpretation, performance, and
enforcement shall be governed by the laws of such state, without
regard to principles of conflicts of laws.
ALADDIN GAMING, LLC
By: /s/ XXXXXXX X. XXXXXXXX
-------------------------------------
Xxxxxxx X. Xxxxxxxx
President and Chief Executive Officer
ALADDIN GAMING HOLDINGS, LLC
By: /s/ XXXXXXX X. XXXXXXXX
-------------------------------------
Xxxxxxx X. Xxxxxxxx
President and Chief Executive Officer
EXECUTIVE
/s/ XXXXXXXX XXXXXX
-------------------------------------
Xxxxxxxx Xxxxxx
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